Compatibility Of The Licensing Of Embedded Patents With Open Source Licensing Terms

Iain G. Mitchell QC, Stephen Mason

Abstract

For many years software patenting has been an area of considerable contention, particularly in relation to whether it can, or should, be able to co-exist with Free and Open Source licenses. This issue has gained substantial additional impetus with the publication by the European Commission of the European Interoperability Framework, version 2, which, amongst other objectives, seeks to promote a level playing field for Free and Open Source Software in European public services. However, interoperability will often require the software to interact with a Standard which contains unavoidable patents.

The issues raised by this were of concern to a client of Andrew Katz1, The client sought the Opinion of Counsel on the matter and Andrew Katz prepared a brief setting out the client's concerns and, by way of illustration, providing the text of a cross-section of commonly-used Free and Open source Software Licences.

The Client has now generously given permission for the Opinion to be published provided that the client's identity is not disclosed. What follows is a suitably edited version of that Opinion, which has been anonymised to respect the wishes of the client and which has been slightly shortened to allow for publication in the Review